Bench Memos

Senator Sessions Against Unilateral Disarmament

After Senate Democrats resorted to their unprecedented campaign of partisan judicial filibusters against President George W. Bush’s judicial nominees, Senate Republicans soundly recognized that the best way to fight the judicial filibuster was to use it (even if in many fewer instances) against President Obama’s nominees. As Senator Jeff Sessions nicely put it in 2009:

For Republicans to ignore the changed rules would be to acquiesce in a system where 60 votes are needed to confirm judges nominated by Republicans, but only 51 are required to confirm judges nominated by Democrats. To allow such a double standard would be akin to unilateral disarmament.

A return to the tradition of up-or-down votes on all judicial nominees would, I believe, strengthen the Senate. I have offered to discuss with my colleagues ways this could be permanently codified in the Senate’s official rules. So far, no takers.

Now that the Republican strategy to defeat the judicial filibuster has succeeded, it’s beyond amazing (as I spelled out in this NRO essay on Wednesday) that some Republican Senate staffers would want to re-impose it—until Senate Democrats regain control of the Senate. The result would be exactly what Senator Sessions objected to: “a system where [when Republicans control the Senate] 60 votes are needed to confirm judges nominated by Republicans, but [when Democrats control the Senate] only 51* are required to confirm judges nominated by Democrats.”

* Given the tiebreaking role of the Vice President, nominees of a Democratic president in a Democratic-controlled Senate would actually need only 50 votes from senators to be confirmed.

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